EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 27, 2002
Between
BWAY FINANCE CORP.
and
DEUTSCHE BANK SECURITIES INC.
as Initial Purchaser
10 % Senior Subordinated Notes due 2010
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TABLE OF CONTENTS
Page
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1. Definitions...............................................................1
2. Exchange Offer............................................................5
3. Shelf Registration........................................................9
4. Additional Interest......................................................11
5. Registration Procedures..................................................13
6. Registration Expenses....................................................21
7. Indemnification and Contribution.........................................22
8. Rules 144 and 144A.......................................................27
9. Underwritten Registrations...............................................27
10. Miscellaneous............................................................27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
November 27, 2002, between BWAY FINANCE CORP., a Delaware corporation (the
"Company"), and DEUTSCHE BANK SECURITIES INC. as initial purchaser (the "Initial
Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement by and between the Company and the Initial Purchaser, dated as of
November 21, 2002 (the "Purchase Agreement"), which provides for, among other
things, the sale by the Company to the Initial Purchaser of $200,000,000
aggregate principal amount of the Issuer's 10 % Senior Subordinated Notes due
2010 (the "Notes"). In connection with the merger of BCO Acquisition, Inc. and
BWAY Corporation, a Delaware corporation ("BWAY") as described in the Offering
Memorandum (as defined herein), BWAY will assume the obligations of the Company
under the Notes and the related Indenture (as defined herein) (the "BWAY
Assumption"). References to the "Issuer" refer to (x) prior to the BWAY
Assumption and in the event that that the BWAY Assumption is not consummated,
the Company and (y) after the BWAY Assumption, BWAY. In order to induce the
Initial Purchaser to enter into the Purchase Agreement, the Issuer has agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchaser and any subsequent holder or holders of the Notes. The
execution and delivery of this Agreement is a condition to the Initial
Purchaser's obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
BWAY: See introductory paragraphs hereto.
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Effectiveness Date: The 150th day after the Merger Date; provided,
however, that with respect to any Shelf Registration, the Effectiveness Date
shall be the 90th day after the filing of the Shelf Registration Statement.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: (A) With respect to an Exchange Offer Registration
Statement, the 60th day after the Merger Date; and (B) with respect to a Shelf
Registration Statement, the 60th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; provided, however, that if the Filing
Date would otherwise fall on a day that is not a Business Day, then the Filing
Date shall be the next succeeding Business Day.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of November 27, 2002, by and
between the Company and Bank of New York, as Trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchaser: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: November 27, 2002, the date of original issuance of the
Notes.
Issuer: See the introductory paragraphs hereto.
Merger Date: The date on which the merger between BWAY and BCO
Acquisition, Inc. ("BCO Acquisition"), a Delaware corporation, is consummated
pursuant to the
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Agreement and Plan of Merger dated as of September 30, 2002, as amended or
supplemented from time to time by and among BWAY, BCO Holding Company and BCO
Acquisition.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum of the Issuer dated
November 21, 2002, in respect of the offering of the Notes.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon its original issuance and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance and at all times subsequent thereto and
each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has
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been disposed of in accordance with such effective Registration Statement, (ii)
such Note has been exchanged pursuant to the Exchange Offer for an Exchange Note
or Exchange Notes that may be resold without restriction under state and federal
securities laws (other than due (x) solely to the status of such Holder as an
affiliate of the Company within the meaning of the Securities Act or (y) to such
Holder's inability to make the representations set forth in section 2(a)
hereof), (iii) such Note, Exchange Note or Private Exchange Note, as the case
may be, ceases to be outstanding for purposes of the Indenture or (iv) such
Note, Exchange Note or Private Exchange Note, as the case may be, may be resold
without restriction as to volume pursuant to Rule 144(k) (as amended or
replaced) under the Securities Act.
Registration Statement: Any registration statement of the Issuer that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes filed
with the SEC under the Securities Act, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating to a
Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company or BWAY are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer
a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuer shall use its
reasonable best efforts to file with the SEC, no later than the Filing Date, a
Registration Statement (the "Exchange Offer Registration Statement") on an
appropriate registration form with respect to a registered offer (the "Exchange
Offer") to exchange any and all of the Registrable Notes for a like aggregate
principal amount of debt securities of the Issuer, that are identical in all
material respects to the Notes (the "Exchange Notes"), except that (i) the
Exchange Notes shall contain no restrictive legend thereon and shall not contain
the provisions relating to Additional Interest and (ii) interest thereon shall
accrue from (A) the later of (x) the last date on which interest was paid on the
Registrable Notes or (y) if the Registrable Note is surrendered for exchange on
a date that is after the record date for an interest payment that will occur on
or after the date of such exchange and as to which interest will be paid, the
date of such interest payment date, or (B), if no such interest has been paid,
from the Issue Date, and which are entitled to the benefits of the Indenture or
a trust indenture which is identical in all material respects to the Indenture
(other than such changes to the Indenture or any such identical trust indenture
as are necessary to comply with the TIA) and which, in either case, has been
qualified under the TIA. The Exchange Offer shall comply with all applicable
tender offer rules and regulations under the Exchange Act and other applicable
laws. The Issuer shall use its reasonable best efforts to (x) cause the Exchange
Offer Registration Statement to be declared effective under the Securities Act
on or before the Effectiveness Date; (y) keep the Exchange Offer open for at
least 20 business days (or longer if required by applicable law) after the date
that notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the 30th business day following the Effectiveness
Date.
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuer in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes
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acquired in exchange for Registrable Notes tendered are being acquired in the
ordinary course of business of the Person receiving such Exchange Notes, whether
or not such recipient is such Holder itself; (ii) at the time of the
commencement or consummation of the Exchange Offer neither such Holder nor, to
the actual knowledge of such Holder, any other Person receiving Exchange Notes
from such Holder has an arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes in violation of the
provisions of the Securities Act; (iii) neither the Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is an "affiliate" (as defined in Rule 405) of the Issuer or, if it is an
affiliate of the Issuer, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and will
provide information to be included in the Shelf Registration Statement in
accordance with Section 5 hereof in order to have their Notes included in the
Shelf Registration Statement and benefit from the provisions regarding
Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the
actual knowledge of such Holder, any other Person receiving Exchange Notes from
such Holder is engaging in or intends to engage in a distribution of the
Exchange Notes; (v) if such Holder is a Participating Broker-Dealer, such Holder
has acquired the Registrable Notes as a result of market-making activities or
other trading activities and that it will comply with the applicable provisions
of the Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder) and (vi) such Holder is not acting on behalf of any
Person who could not truthfully make the foregoing representations. Any Holder
that fails to make the foregoing representations will not be entitled to the
benefits of Additional Interest on the Notes as set forth in Section 4 hereof.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, solely with
respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as
to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating
Broker-Dealers, and BWAY shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
b) The Issuer shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchaser, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies
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represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
The Issuer shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
such period shall terminate on the date on which a Participating Broker-Dealer
is no longer required to deliver such Prospectus in connection with
market-making or trading activities and in any event shall not be required to
exceed 180 days or such longer period if extended pursuant to the last paragraph
of Section 5 hereof (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it that have the status of an unsold allotment in
the initial distribution, the Issuer upon the request of the Initial Purchaser
shall simultaneously with the delivery of the Exchange Notes issue and deliver
to the Initial Purchaser, in exchange (the "Private Exchange") for such Notes
held by any such Holder, a like principal amount of notes (the "Private Exchange
Notes") of the Issuer, that are identical in all material respects to the
Exchange Notes except for the placement of a restrictive legend on such Private
Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes.
In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) use its reasonable best efforts to keep the Exchange Offer open
for not less than 20 days after the date that notice of the Exchange Offer
is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
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(4) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer and the Private Exchange,
if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such Holder so accepted for
exchange; provided that, in the case of any Notes held in global form by a
depositary, authentication and delivery to such depositary of one or more
replacement Notes in global form in an equivalent principal amount thereto
for the account of such Holders in accordance with the Indenture shall
satisfy such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuer to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuer; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuer deems necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture and which, in either case, has been qualified under the TIA or
is exempt from such qualification and shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
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c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, BWAY is not permitted to effect the
Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days of
the Merger Date, (iii) the Initial Purchaser or any holder of Private Exchange
Notes so requests in writing to the Issuer at any time after the consummation of
the Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than (x) due solely to the status of such Holder as an affiliate of
the Issuer within the meaning of the Securities Act or (y) such Holder's
inability to make the representations set forth in Section 2(a) hereof) and so
notifies the Issuer in writing within 30 days, in the case of each of clauses
(i) to and including (iv) of this sentence, then the Issuer shall promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice") and shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section
2(c) hereof, then:
a) Shelf Registration. The Issuer shall use its reasonable best
efforts to as promptly as practicable file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Registrable Notes (the "Initial Shelf
Registration"). The Issuer shall use its reasonable best efforts to file
with the SEC the Initial Shelf Registration on or prior to the applicable
Filing Date. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuer shall
not permit any securities other than the Registrable Notes to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Issuer shall use its reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior
to the applicable Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
that is the earliest of (i) the date that is two years from the Issue Date
or, (ii) such time as all Registrable Notes covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in
the Initial Shelf Registration or, if applicable, a Subsequent Shelf
Registration, or (iii) such time as the applicable Notes may be distributed
to the public under Rule 144(k) promulgated under the Securities Act
without volume limitation, if any (the "Effectiveness Period");
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provided, however, that the Effectiveness Period in respect of the Initial
Shelf Registration shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirements of
Rule 174 under the Securities Act and as otherwise provided herein.
b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Issuer shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within 30 days of such cessation of effectiveness amend
such Shelf Registration Statement in a manner to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement pursuant to Rule 415 covering all of the Registrable
Notes covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (each, a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuer
shall use its reasonable best efforts to cause the Subsequent Shelf
Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf
Registration continuously effective for a period equal to the number of
days in the Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
c) Supplements and Amendments. The Issuer shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested
by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement with respect to
the information included therein with respect to one or more of such
Holders (or their counsel), or by any underwriter of such Registrable Notes
with respect to the information included therein with respect to such
underwriter.
d) Blackout Period. Notwithstanding anything to the contrary in this
Agreement, the Issuer, upon notice to the Holders of Registrable Notes that
the Shelf Registration Statement is unusable pending a material
development, may suspend the use of the Prospectus included in any Shelf
Registration Statement in the event that and for a period of time (the
"Blackout Period") not to exceed an aggregate of 60 days in any twelve
month period if provided, that, upon the termination
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of such Blackout Period, the Company promptly shall notify the Holders of
Registrable Notes that such Blackout Period has been terminated.
4. Additional Interest
a) The Issuer and the Initial Purchaser agree that the Holders will
suffer damages if the Issuer fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuer agrees to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest")
under the circumstances and to the extent set forth below (each of which shall
be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the 60th day
following the Merger Date or (B) notwithstanding that the Issuer has
consummated or will consummate the Exchange Offer, the Issuer is required
to file a Shelf Registration and such Shelf Registration is not filed on or
prior to the Filing Date applicable thereto, then, commencing on the 61st
day following the Merger Date or the day after any such Filing Date, as
applicable, Additional Interest shall accrue on the principal amount of the
Notes at a rate of .50% per annum for the first 90 days immediately
following such applicable date, and such Additional Interest rate shall
increase by an additional .50% per annum at the beginning of each
subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on or prior to
the 150th day following the Merger Date or (B) notwithstanding that the
Issuer has consummated or will consummate the Exchange Offer, the Issuer is
required to file a Shelf Registration and such Shelf Registration is not
declared effective by the SEC on or prior to the Effectiveness Date
applicable to such Shelf Registration, then, commencing on the 151st day
following the Merger Date or the day after such Effectiveness Date, as
applicable, Additional Interest shall accrue on the principal amount of the
Notes at a rate of .50% per annum for the first 90 days immediately
following the day after such applicable date, and such Additional Interest
rate shall increase by an additional .50% per annum at the beginning of
each subsequent 90-day period; or
(iii) if (A) the Issuer has not exchanged Exchange Notes for all Notes
validly tendered in accordance with the terms of the Exchange Offer on or
prior to the 30th business day from the date the Exchange Offer
Registration Statement was declared effective or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration ceases
to be effective at any time during the Effectiveness Period, and is not
replaced within 30 days by an additional Shelf Registration Statement that
is declared effective, then Additional Interest shall accrue on the
principal
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amount of the Notes at a rate of .50% per annum for the first 90 days
commencing on the (x) 31st business day from the date the Exchange Offer
Registration Statement was declared effective, in the case of (A) above, or
(y) the 31st day after such Shelf Registration ceases to be effective in
the case of (B) above, and such Additional Interest shall increase by an
additional .50% per annum at the beginning of each such subsequent 90-day
period;
provided, however, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) - (iii) at any one time and at
no time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate 1.0% per annum; provided, further, however, that (1) upon the filing
of the applicable Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the exchange of the
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Notes in respect of which such events
relate as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue. Without limiting the foregoing, Additional
Interest with respect to a failure to file, cause to become effective or
maintain the effectiveness of a Shelf Registration Statement shall cease to
accrue upon the consummation of the Exchange Offer in the case of a Shelf
Registration Statement required to be filed due to a failure to consummate the
Exchange Offer within the required time period. Notwithstanding anything to the
contrary in this Section 4(a), the Issuer shall not be required to pay
Additional Interest to a Holder if such Holder failed to comply with its
obligations to make the representations set forth in Section 2(a) hereof or
failed to provide the information required to be provided by it, if any,
pursuant to Section 5 hereof.
b) The Issuer shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semiannually on each April 15 and October 15 (to the holders of
record on the April 1 and October 1 immediately preceding such dates),
commencing with the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360 day year comprised of twelve 30 day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
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5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer shall use its reasonable best efforts
effect such registrations to permit the sale of the securities covered thereby
in accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Issuer hereunder the Issuer shall:
a) Use its reasonable best efforts to prepare and file with the SEC
prior to the applicable Filing Date a Registration Statement or
Registration Statements as prescribed by Section 2 or 3 hereof, and use its
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to
Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom any Issuer has received
written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Issuer shall furnish to and
afford the Holders of the Registrable Notes covered by such Registration
Statement (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or each such Participating Broker-Dealer (with respect to
any such Registration Statement), as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five business days prior to such filing). The Issuer shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis.
b) Use its reasonable best efforts to (i) prepare and file with the
SEC such amendments and post-effective amendments to each Shelf
Registration Statement or Exchange Offer Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period, the Applicable Period
or until consummation of the Exchange Offer, as the case may be; (ii) cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424; and (iii) comply in all material respects with the provisions of
the Securities Act and the Exchange Act applicable
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to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities
being sold by an Participating Broker-Dealer covered by any such
Prospectus; provided that, to the extent relating to a Shelf Registration
Statement, none of the foregoing shall be required during a Blackout
Period.
c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
and becomes effective, or (2) the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof becomes effective and a Prospectus
contained therein is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom any Issuer has received
written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof), or
each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, their counsel and the managing
underwriters, if any, promptly and confirm such notice in writing, (i) when
a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (ii) of the issuance by the SEC of any stop order suspending
the effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuer contained
in any agreement (including any underwriting agreement) contemplated by
Section 5(n) hereof cease to be true and correct in all material respects,
(iv) of the receipt by any Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement made
in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements
-15-
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (vi) of the Issuer's determination that a
post-effective amendment to a Registration Statement would be appropriate.
d) Use its reasonable best efforts to obtain the withdrawal of the
issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus
or suspending the qualification (or exemption from qualification) of any of
the Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction at the earliest practicable
moment.
e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) as promptly
as practicable incorporate in a prospectus supplement or post-effective
amendment such information with respect to such Holders as the managing
underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
and becomes effective, or (2) the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof becomes effective and a Prospectus
contained therein is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Registrable Notes who
so requests (with respect to a Registration Statement filed pursuant to
Section 3 hereof) and to each such Participating Broker-Dealer who so
requests (with respect to any such Registration Statement) and to their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuer, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits.
-16-
g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes (with respect to a Registration Statement filed
pursuant to Section 3 hereof), or each such Participating Broker-Dealer
(with respect to any such Registration Statement), as the case may be,
their respective counsel, and the underwriters, if any, at the sole expense
of the Issuer, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons
may reasonably request; and, while the applicable Registration Statement
remains effective and subject to the last paragraph of this Section 5, the
Issuer hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes (prior to the end of the
Applicable Period) covered by, or the sale (prior to the end of the
Applicable Period) by Participating Broker-Dealers of the Exchange Notes
pursuant to such Prospectus and any amendment or supplement thereto.
h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its reasonable best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing underwriter
or underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request in writing; provided,
however, that the Issuer shall not be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B) take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
i) If a Shelf Registration is filed pursuant to Section 3 hereof and
becomes effective, cooperate with the selling Holders of Registrable Notes
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation
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and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture) and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
j) Use its reasonable best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or approved by
such other United States governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required as a consequence of the nature of such
selling Holder's business, in which case the Issuer will cooperate in all
reasonable respects with the filing of such registrations and the granting
of such approvals.
k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
and becomes effective, or (2) the Exchange Offer Registration Statement
filed pursuant to Section 2 becomes effective and a Prospectus contained
therein hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare
and (subject to Section 5(a) hereof) file with the SEC, at the sole expense
of the Issuer, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder (with respect to a
Registration Statement filed pursuant to Section 3 hereof) or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer (with respect to any such Registration
Statement), any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
l) If not previously rated, use its reasonable best efforts to cause
the Registrable Notes covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement or the Exchange Notes, as the case may be, or the managing
underwriter or underwriters, if any, if not previously rated.
-18-
m) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
n) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes (including customary indemnification provisions) and take all such
other actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) to the
extent possible make such representations and warranties to, and covenants
with, the underwriters with respect to the business of BWAY (including any
acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing if
and when requested; (ii) obtain the written opinions of counsel to the
Issuer, in customary form or otherwise reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions reasonably requested
in underwritten offerings; and (iii) obtain "comfort" letters and updates
thereof in customary form, or otherwise reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of BWAY (and, if necessary, any other independent certified
public accountants of BWAY, or of any business acquired by BWAY, for which
financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings of debt securities similar to the Notes. The above shall be done
at each closing under such underwriting agreement, or as and to the extent
required thereunder.
o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
and becomes effective, or (2) the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof becomes effective and a Prospectus
contained therein is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any Initial Purchaser,
a representative of the Holders of such Registrable Notes being sold (with
respect to a Registration Statement filed pursuant to Section 3 hereof), or
each such Participating Broker-Dealer, as the
-19-
case may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and a single firm of counsel retained by selling
Holders or each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, or underwriters (any such
Initial Purchasers, representative, Participating Broker-Dealers,
underwriters, or counsel, collectively, the "Inspectors"), upon written
request, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, pertinent corporate
documents and instruments of BWAY and subsidiaries of BWAY (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of BWAY and any of its respective subsidiaries to
supply all information ("Information") reasonably requested by any such
Inspector in connection with such due diligence responsibilities. Each
Inspector shall agree in writing that it will keep the Records and
Information confidential and that it will not disclose any of the Records
or Information that any Issuer determines, in good faith, to be
confidential and notifies the Inspectors in writing are confidential unless
(i) the disclosure of such Records or Information is necessary to avoid or
correct a misstatement or omission in such Registration Statement or
Prospectus, (ii) the release of such Records or Information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) the information in such Records or Information has
been made generally available to the public other than by or through an
Inspector or an "affiliate" (as defined in Rule 405) thereof; provided,
however, that prior notice shall be provided as soon as practicable to any
Issuer of the potential disclosure of any information by such Inspector
pursuant to clauses (i) or (ii) of this sentence to permit the Issuer to
obtain a protective order (or waive the provisions of this paragraph (o))
and that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of or
in derogation of the rights and interests of the Holder or any Inspector.
p) Use its reasonable best efforts to (i) provide an indenture trustee
for the Registrable Notes or the Exchange Notes, as the case may be, and
cause the Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Notes; (ii) in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes, to
effect such changes (if any) to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA; and
(iii) execute, and use its reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all
other
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forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
q) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders
with regard to any applicable Registration Statement, a consolidated
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any fiscal
quarter (or 90 days after the end of any 12-month period if such period is
a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first month of the first fiscal quarter of
BWAY, after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuer (or to such
other Person as directed by the Issuer), in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Issuer shall mark,
or cause to be marked, on such Registrable Notes that such Registrable
Notes are being cancelled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
The Issuer may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuer such information
regarding such seller and the distribution of such Registrable Notes as the
Issuer may, from time to time, reasonably request. The Issuer may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuer all information required to be disclosed in
order to make the information previously furnished to the Issuer by such seller
not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating
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Broker-Dealer, as the case may be, that, upon actual receipt of any notice from
the Issuer (i) of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof or (ii) the commencement of a
Blackout Period, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, (x) until such Holder's or Participating Broker-Dealer's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
5(k) hereof, or until it is advised in writing (the "Advice") by the Issuer that
the use of the applicable Prospectus may be resumed, and has received copies of
any amendments or supplements thereto or (y) in the case of the immediately
preceding clause (ii) the earlier of (A) 60 days after the commencement of such
blackout period and (B) receipt of notice from the Issuer that such Blackout
Period has ended. In the event that the Issuer shall give any such notice, each
of the Applicable Period and the Effectiveness Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or the Advice or (y) in the case of clause (ii), the notice that such
Blackout Period has ended.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer, whether or not
the Exchange Offer Registration Statement or any Shelf Registration Statement is
filed or becomes effective or the Exchange Offer is consummated, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Notes or Exchange Notes and determination of
the eligibility of the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions where the holders of Registrable Notes are
located, in the case of the Exchange Notes, (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuer and, in the case of a Shelf
Registration, reasonable fees and disbursements of one special counsel for all
of the sellers of Registrable Notes (exclusive of any counsel retained pursuant
to Section 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) hereof (including,
-22-
without limitation, the expenses of any "comfort" letters required by or
incident to such performance), (vi) Securities Act liability insurance, if the
Issuer desires such insurance, (vii) fees and expenses of all other Persons
retained by the Issuer, (viii) internal expenses of the Issuer (including,
without limitation, all salaries and expenses of officers and employees of the
Issuer performing legal or accounting duties), (ix) the expense of any annual
audit, (x) any fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement; but excluding any and all fees
of counsel to the underwriters (except as set forth in clause (i)(b) above) and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Notes by a Holder.
7. Indemnification and Contribution. (a) The Issuer agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
and each Person, if any, who controls such Person or its affiliates within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a
"Participant") against any losses, claims, damages or liabilities to which any
Participant may become subject under the Act, the Exchange Act or otherwise,
insofar as any such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by any Issuer contained in any application or any
other document or any amendment or supplement thereto
executed by any Issuer based upon written information
furnished by or on behalf of any Issuer filed in any
jurisdiction in order to qualify the Notes under the
securities or "Blue Sky" laws thereof or filed with
the SEC or any securities association or securities
exchange (each, an "Application");
(ii) any untrue statement or alleged untrue statement
of any material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuer has
furnished any amendments or supplements thereto) or
any preliminary prospectus; or
(iii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or
Prospectus
-23-
(as amended or supplemented if the Issuer has
furnished any amendments or supplements thereto) or
any preliminary prospectus or any Application or any
other document or any amendment or supplement
thereto, a material fact required to be stated
therein or necessary to make the statements therein
not misleading;
and will reimburse, as incurred, the Participant for any legal or other expenses
incurred by the Participant in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, the Issuer will not be liable in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer has
furnished any amendments or supplements thereto) or any preliminary prospectus
or Application or any amendment or supplement thereto in reliance upon and in
conformity with information relating to any Participant furnished to the Issuer
by such Participant specifically for use therein and provided, further, that
with respect to any untrue statement or omission or alleged untrue statement or
omission made in prospectus, or any amendment or supplement thereto, or any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
contained in this Section 7 shall not inure to the benefit of any Participant
from whom the Person asserting any such loss, claim, damage or liability
purchased the Notes concerned to the extent that a prospectus relating to such
Notes was required to be delivered to such Person, and there was not given or
sent to such Person, at or prior to the written confirmation of the sale of such
Notes to such Person, a copy of the final prospectus (in the case of any such
preliminary prospectus) or a prospectus supplement (in any other case) if the
Company had previously furnished copies thereof to such Participant, and such
untrue statement or omission or alleged untrue statement or omission was
corrected in such final prospectus or prospectus amendment or supplement. The
indemnity provided for in this Section 7 will be in addition to any liability
that the Issuer may otherwise have to the indemnified parties. The Issuer shall
not be liable under this Section 7 for any settlement of any claim or action
effected without its prior written consent, which shall not be unreasonably
withheld.
b) Each Participant, severally and not jointly, agrees to
indemnify and hold harmless the Issuer, its directors, its officers, its
employees and each person, if any, who controls the Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (and any
director, officer or employee of any such controlling Person) against any
losses, claims, damages or liabilities to which the Issuer or any such
director, officer, employee or controlling Person may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
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of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary prospectus, or (ii)
the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning such Participant,
furnished to the Issuer by or on behalf of such Participant, specifically
for use therein; and subject to the limitation set forth immediately
preceding this clause, will reimburse, as incurred, any legal or other
expenses incurred by the Issuer or any such director, officer, employee or
controlling (and any director, officer or employee of any such controlling
Person) person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. The indemnity provided for
in this Section 7 will be in addition to any liability that the
Participants may otherwise have to the indemnified parties. The
Participants shall not be liable under this Section 7 for any settlement of
any claim or action effected without their consent, which shall not be
unreasonably withheld. The Issuer shall not, without the prior written
consent of such Participant, effect any settlement or compromise of any
pending or threatened proceeding in respect of which any Participant is or
could have been a party, or indemnity could have been sought hereunder by
any Participant, unless such settlement (A) includes an unconditional
written release of the Participants, in form and substance reasonably
satisfactory to the Participants, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of
any Participant.
c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 7, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party
of the commencement thereof in writing; but the omission to so notify the
indemnifying party (i) will not relieve it from any liability under
paragraph (a) or (b) above unless and to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights and
defenses) and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate
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therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, that if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party,
or (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after receipt by the indemnifying party of notice
of the institution of such action, then, in each such case, the
indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend
such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying
party shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by Participants who
sold a majority in interest of the Registrable Notes and Exchange Notes
sold by all such Participants in the case of paragraph (a) of this Section
7 or the Issuer in the case of paragraph (b) of this Section 7,
representing the indemnified parties under such paragraph (a) or paragraph
(b), as the case may be, who are parties to such action or actions) or (ii)
the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. All
fees and expenses reimbursed pursuant to this paragraph (c) shall be
reimbursed as they are incurred. After such notice from the indemnifying
party to such indemnified party, the indemnifying party will not be liable
for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this
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Section 7, in which case the indemnified party may effect such a settlement
without such consent.
d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only
such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuer on the one hand, or the Participants on the other, the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or
omission, and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Participant shall be obligated to make contributions hereunder that
in the aggregate exceed the price at which such Participant sold its with
the sale of the Notes, less the aggregate amount of any damages that such
Participant has otherwise been required to pay by reason of the untrue or
alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person, if any, who controls a
Participant within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the
Participants, and each director of any Issuer, each officer or employee of
any Issuer and each person, if any, who controls any Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (and any
director, officer or
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employee of such controlling Person) shall have the same rights to
contribution as the Issuer. The Participants' obligation to contribute
pursuant to this Section is several and not joint.
8. Rules 144 and 144A
The Issuer covenants and agrees that it will use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC thereunder
in a timely manner in accordance with the requirements of the Securities Act and
the Exchange Act and will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available other information so long as necessary to
permit sales pursuant to Rule 144A. The Issuer further covenants and agrees, for
so long as any Registrable Notes remain outstanding that it will use its
reasonable best efforts to take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144(k)
under the Securities Act and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering subject to the consent of the Issuer (not to be
unreasonably withheld). Such Holder shall be responsible for all underwriting
commissions and discounts in connection therewith.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, and the Issuer shall not, after the date of this Agreement, enter
into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to
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the holders of the Issuer's other issued and outstanding securities under
any such agreements. The Issuer will not enter into any agreement with
respect to any of its securities which will grant to any Person piggy-back
registration rights with respect to any Registration Statement.
b) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (I) the Issuer, and (II)(A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not
less than a majority in aggregate principal amount of the Exchange Notes
held by all Participating Broker-Dealers; provided, however, that Section 7
and this Section 10(c) may not be amended, modified or supplemented without
the prior written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Notes may be given by
Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
c) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address
of such Holder or Participating Broker-Dealer, as the
case may be, set forth on the records of the registrar
under the Indenture, with a copy in like manner to the
Initial Purchaser as follows:
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Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
Facsimile No.: (646) 324-7467
Attention: Corporate Finance
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: John A. Tripodoro , Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 10(d)(i);
(iii) if to the Issuer, at the address as follows:
BWAY Corporation
8607 Roberts Drive, Suite 250
Atlanta,GA 30350
Facsimile No.: (770) 587-0156
Attn: Kevin C. Kern
with a copy to:
Debevoise & Plimpton
919 Third Avenue
NY, NY 10022
Facsimile No.: (212) 909-6836
Attn: Stephen R. Hertz, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
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d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT ARE NOT MADATORILY APPLICABLE BY STATUTE AND
WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
h) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
i) Securities Held by the Issuer or the Issuer's Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuer or its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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j) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
k) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BWAY FINANCE CORP.
By: /s/ Stanley de J. Osborne
----------------------------------
Name: Stanley de J. Osborne
Title: Vice President
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The foregoing Agreement is hereby
confirmed and accepted by the
Initial Purchaser as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Carl Mayer
------------------------------------
Name: Carl Mayer
Title: Managing Director
By: /s/ Sean C. Murphy
------------------------------------
Name: Sean C. Murphy
Title: Vice President